The Governor's eyes twinkled. “It's the duty of every man," he said, " to live unspotted. Still if I were you, I'd pay up.' -Washington Star. he was defeated as a Presidential candi- UNSPOTTED. At a dinner attended by date in 1904 by a popular majority the late Governor Johnson, a New York against him of two and a half million, millionaire said, in reference to his taxes: votes and by an electoral majority against "I've got a little piece of property that him of 196 votes." But the committee is brings me in a fair rental, and the tax not attacking the judges personally, but gatherers haven't spotted it yet. I don't the system by which they are selected. know whether I ought to tell them or not. Mr. John R. Dos Passos, a prominent What would you do, Governor JohnNew York lawyer, in a subsequent letter son? to the "Sun," assumes responsibility for the report, and says of it: "It is the system under which judges are nominated which is inveighed against and not the individuals who are upon the bench. I am on terms of friendly relationship with all of them. They are creatures of the system. It will be a great disappointment if we do not have the support of the press of our state in an earnest effort to amend the rules of the courts relating to admission to the bar, which lawyers concede are inadequate to produce as a whole either capable lawyers or fully equipped judges." -The Green Bag. My Papa. My papa is a lawyer man, He tells me lots of things At night when he is smokin' an' A blowin' big smoke rings. He laughs an' says, "My boy, ha! ha! He uses awful words, I just Can't find the meaning for, He says I am cestui-que trust And he the obligor. He talks so much I fall asleep, Then wakes me with a nudge An' says his talk must be too deep, -H. R. B., in The Green Bag. -A distinguished Irish lawyer, always in impoverished circumstances, once took Chief Justice Whiteside to see his mag-: nificently-furnished new house in Dublin. "Don't you think," he said with a complacent look about, "that I deserve great credit for this?" "Yes," the judge answered dryly, "and you appear to have got it." -Tit-Bits. O. C. OPINION AND ADJUDICA- By Judge SMITH. Monday, January 17, 1910. Thomas B. Himes, Mt. Joy Borough, $25.578.99. Rev. Jacob W. Zimmerman, West Earl, $23.426.46. John George Ruthardt, Manheim Township, $1,700.18. George W. Robinson, Martic, $354.36. S. Wesley Bowman, Manheim Borough, $1.316.78. William Frailey, City,. Jos. H. Roop, Colerain. Henry C. Shirk, deceased. Rule for Thursday, January 20, 1910. Ellen H. Gockley, Penn, $123.54. Susan Schweager, Penn, $1,189.54. John N. Gish, West Donegal, $2,451.56. Abraham Roop, Colerain, $29,261.46. Lizzie White, Manheim Borough, $19,048.45. LANCASTER LAW REVIEW. addition, it is admitted that the defend- VOL. XXVII.] MONDAY, JAN. 31, 1910. [No. 13. along about the month of February, Common Pleas-- Law. C. P. OF LANCASTER COUNTY. 1909, the plaintiffs entered into a verbal agreement with the defendants, by the terms of which the plaintiffs were to fill all orders for shoes sent them by the defendants, and the defendants were to purchase shoes manufactured by the plaintiffs, and, in addition, spend a suffi Selz, Schwab & Co. (Inc.) vs. E. Cohn and cient sum of money in advertising to Rebecca Cohn, trading as New York Clothing House. Suit for price of goods sold-Agreement to fill all orders-Affidavit or defense-Set-off. In an action for $205.90 for the price of shoes sold and delivered an affidavit of defense is insufficient which avers that the plaintiffs had agreed to fill all orders for a year from the defendant, who were to purchase their shoes and spend a sufficient sum in advertising to build up a trade, but after filling defendants' orders for a time the plaintiff refused to fill further orders and the defendants thereby lost $300 expended in advertising and suffered additional damages to the extent of $900, without averring that any of the shoes received were paid for, although the bills called for payment in thirty days, or that the amount expended for advertising was sufficent. An allegation of a se:-off in an affidavit of defense will not be regarded when in general terms. It must be as specific as a statement as to the source, character and amount of the set-off. August Term, 1909. No. 67. build up a trade for them in Stewarts- Rule for judgment for want of a suffi- for advertising was sufficient to build cient affidavit of defense. up a trade for these shoes, nor is any time fixed for the payment of the ac Geo. Ross Eshleman and S. V. Hoster- counts. man, for rule. John E. Malone, contra. Under the facts thus presented, are the plaintiffs entitled to judgment? It must be remembered that no issue is January 1, 1910. Opinion by LAN- raised as to the receipt of the goods, or DIS, P. J. This suit was brought to recover a book account to $205.90, for shoes purchased between April 22, 1909, and May 24, 1909, inclusive. It is admitted that the merchandise, as shown by the several bills attached to the statement, was furnished to the defendants, and it is not on account of any deficiency in quality that this present dispute has arisen. In as to the payment of any portion furnished to the defendants under the contract. While they assert that they were to spend a sufficient sum of money in advertising, they do not allege that the amount they claim to have expended measured up to that standard. No time was mentioned, so far as we are informed, for payment, but the bills call for payment in thirty days, and the de fendants, on their part, neither paid the | C. P. OF LANCASTER COUNTY. same when due, nor offered an expla- Grace Leaman vs. Lancaster County Mutual nation for their failure so to do. The plaintiffs, for this reason, had a right to stop shipment, and their doing so did not subject them to a claim for damages. Therefore, upon these conceded facts, we do not think the defendants have made out their counter-claim. In addition, however, we think their allegations, even if true, are insufficiently stated. In Loeser vs. Erie City Rag Warehouse, 10 Sup., 540, it is said that "allegations of set-off in general terms. are not to be regarded. The averments must be as specific as those used in a statement of claim. The defendant in respect to a claim of set-off is the actor. He may defalk an amount less than, equal to, or in excess of, the claim of the plaintiff, and, should the case go to a jury, demand a certificate in his favor. He has the affirmative of the issue. There can be no harshness in imposing upon him the obligation to aver his setoff in terms incapable of being misunderstood. Failure to file an affidavit specific and precise as to source, character and amount must result in judgment being entered against him." To the same effect are: Fleisher vs. Blackburn, 15 Sup., 289; Carnahan Stamping and Enameling Company vs. Foley, 23 Sup., 643; McFetridge vs. Megargee, 26 Sup., 501; Evans vs. Lyon, 33 Sup., 255. The case of Carnahan Stamping and Enameling Company vs. Foley, supra, discloses facts very similar to those here elicited, and, in our judgment, completely rules the present controversy. See, also, Penn Shovel Company vs. Phelps, 24 Sup.. 595. We are of the opinion that no sufficient defense has been presented, and that the rule should be made absolute, and judgment should, therefore, be entered in favor of the plaintiffs for the sum of $205.00, with interest from June 24, 1909, making $211.31. Rule made absolute, and judgment. accordingly. Insurance Company. Chas. W. Eaby, for rule. Edwin M. Gilbert, contra. January 15, 1910. Opinion by LANDIS, P. J. On December 27, 1904, the defendant company issued its policy of insurance to E. H. Leaman and wife, whereby it insured against damage by fire "their buildings and contents ", located in the village of Paradise, in an amount not exceeding $3,500.00. A copy of the original application appended thereto was as follows: "On their two story frame dwell- "On his frame stable, 18 x 20 ft., 16 ft. to square "Contents 1300. 800. 500. 300. 100. 500. "3500." On the morning of April 15, 1907, a fire occurred whereby the "frame cigar box factory" and its contents were destroyed. Notice was given to the secretary of the company, and he visited the place of the fire. A proof of loss, as | policy is, "(f) No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity . . . unless commenced within twelve months next after the fire," the present proceeding was begun too late. We will consider these questions in their inverse order. to the contents, was then made out and sworn to, and delivered to the secretary, and no other proof was either furnished or demanded. The loss was fixed therein at $509.50. After some correspondence with the company in relation to the loss, Leaman received a check for $598.80. and $10.70 was allowed for the tax rate The validity of a special agreement as due. After the check was received he to the bringing of an action within went to the office of the company and twelve months has been firmly estabtold the secretary that it was not accord-lished; but, in Bennethum vs. Bowers, ing to the policy, and he was informed 133 Pa., 332, Paxson, C. J., said that that the company would pay no more. the setting aside of service does not Subsequently, he met the board, but no set aside the writ; that remains, and an agreement was arrived at. As $609.50 alias can issue thereon, thus stopping was in effect paid, and the insurance the running of the statute.' Therefore, upon the shop and contents amounted to in Everett vs. Niagara Insurance Co., $800.00, the plaintiff claimed that there 142 Pa., 322, when a fire occurred on was $190.50 yet due to her, and it was January 6, 1887, and a writ of summons to recover this amount that this suit was isued against the defendant on Dewas brought. The "frame_cigar box cember 27, 1887, which was subsequently factory" did not belong to E. H. Lea- set aside, and an alias writ of summons man, but it belonged to Grace Leaman, was issued on January 25, 1889, it was his wife. The contents, however, be- held that the policy was complied with, longed to Mr. Leaman. in that the action had been commenced within twelve months. within twelve months. Following these cases, we are constrained to hold that the action having been commenced within the time stipulated in the policy, was continued, although the alias summons was issued after the expiration of twelve months. On April 14, 1908, a summons in assumpsit were issued by an alderman, in which Ezra H. Leaman and Grace Leaman were plaintiffs, and the Lancaster County Mutual Insurance Company was defendant, to recover the balance alleged by them to be due on this policy of insurance, and, after a hearing duly had, judgment was entered in favor of the plaintiffs for $190.80. A writ of certiorari was thereupon sued out, and in an opinion filed June 27, 1908, the proceedings of the alderman were set aside for want of proper service of the writ. See Leaman vs. Lancaster County Mutual Insurance Co., 25 LANC. LAW REVIEW, 308. On December 2, 1908, an alias summons was issued, the record stating that the original summons had been issued on April 14, 1908. After a hearing, judgment was entered for the same plaintiff for $190.50, and the case was thereupon brought before us by appeal. The legal propositions here involved are: First, that as the policy insured the building of E. H. Leaman, his wife, Grace Leaman, cannot recover; and, second, that, as one of the conditions of the i But, had Mrs. Leaman any insurable interest under the policy? It is true that, by the policy, the insurance conpany agreed to indemnify E. H. Leaman and wife . . . against all direct loss or damage by fire. . . to the following described property: On their buildings and contents. $3500.' But Clause X of the By-Laws states that, "if an application. . . be referred to in this policy, it shall be a part of this contract and a warranty by the insured." As has been mentioned above, the two story frame dwelling and contents are referred to in the application as the property of Mr. Leaman and his wife, whereas the frame cigar box factory and contents are insured in his name; while, as a matter of fact, the factory was Mrs. Leaman's and the contents his. Can the insurance, under such circumstances, be recovered by her, in the absence of evi C. P. OF LANCASTER COUNTY. Doerr vs. Ziegler. dence that, when the company wrote the policy, they were informed that this property belonged to her and not to her husband? Section 1 of the By-Laws Receipt-Conclusiveness of-Evidence. declares that "this policy shall be void if the interest of the assured be other than the unconditional and sole ownership of the property herein described and of the land on which it stands, unless otherwise expressed in this policy." In Diffenbaugh vs. Union Fire Insurance Company, 150 Pa., 270, it was held that there can be no recovery by a wife for a loss of her goods by fire where they were insured in the name of her husband, without notice to the company of her ownership, on a policy of insurance which contained a clause voiding the policy if the interest of the insured be not truly stated therein." In Schroedel vs. Humboldt Fire Ins. Co., 158 Pa., 459, the policy of insurance was issued in the name of the husband, while the evidence showed that the property was jointly owned by husband and wife. It was held that, in the face of a similar proviso in the policy, there could be no recovery. In Elliott vs. Teutonia Ins. Co., 20 Sup., 359, the machinery in a factory was owned by a third person, and this fact was not disclosed to the company until after a fire, and it was held that the whole policy_was_void. See, also, Duda vs. Home Ins. Co., 20 Sup., 244; Beddall vs. Citizens' Ins. Co., 28 Sup., 600; Seitz vs. Scottish Union and Na tional Ins. Co., 37 Sup., 261. And in Chaney vs. Farmers' Fire Ins. Co., 32 Sup., 479, where a policy was issued to "Mrs. H. M. Chaney and Daughter," whereas the stock was owned by H. M. Chaney, the husband and father of the insured, it was decided that the condition as to unconditional ownership precluded a recovery upon the policy. We, therefore, do not see how there can be any recovery in this case, and, because of this, we make the rule absolute, and enter judgment for the defendant non obstante veredicto. Rule made absolute; judgment for defendant non obstante veredicto. The plaintiff, in a suit for rent for the last quarter of a term, will not be permi.ted, withsigned by him apparently for the last two out corroboration, to testify that a receipt quarters' rent was given for a payment only of the next to the last quarter's rent and not intended to cover the last quarter also. May Term, 1908. No. 43. Rule for a new trial. W. C. Rehm, for plaintiff and rule. John E. Malone and IV. T. Brown, contra. January 1, 1910. Opinion by LANDIS, P. J. to one, Adam Fellman, a hotel property, On May 13, 1902, the plaintiff leased. located in the village of Rohrerstown, this county, for the term of eleven months, at a rent of $458.33% for said term, payable $83.333 on or before July 1, 1902, being for the months of May and June, and $125.00 quarterly thereafter at the end of each quarter. Peter Ziegler became the surety for this rent. Fellman remained upon the premises until March 23, 1903, and, when he left, according to the testimony of Doerr, he paid him $125.00 on account of the rent, leaving $125.00 yet remaining due. On April 14, 1908, suit for this amount was commenced before an alderman, and it came before us for determination on appeal from the judgment entered by the alderman. It appeared upon the trial that, after leaving Rohrerstown, Fellman moved, with his effects, to Lanand his present residence is unknown. caster, and subsequently left this city, After he had left, the following receipt was found among his papers: "Rohrerstown, March 23, 1903. "Received of Adam Fellman for rent from Oct. 1, 1902, till January 1, 1903, $250.00 from 1903 till March 31, 1903. "JOHN DOERR." No dispute arose as to the genuineness of John Doerr's signature to the receipt, but he was called to explain the writing, and this we held he could not do, un |